Playing the Indian Card

Monday, April 24, 2017

A Trip to Bountiful

A happy frontier Mormon family.

There is a court case now underway to decide whether Canada’s law against polygamy is constitutional.

For many years, the government has declined to prosecute polygamists, and I understand it is for this reason: because it is quite likely that the law, if ever tested, would indeed be found unconstitutional and thrown out. The net result being more polygamous marriages, which presumably the authorities do not want.

My friend Xerxes has chimed in with his column. His argument is that polygamy should indeed be prosecuted. His argument is that religious liberty does not take precedence over “the laws of the land,” that “a religion cannot and should not exempt its followers from obeying the laws of the land.”

This is simply a rejection of the concept of religious freedom itself.

In Memoriam, Brigham Young.

The entire point of a human right is that it is a restriction on government action, on what laws can be made or enforced. In the words of the US First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

It is true that the protections in the Canadian Constitution are not as strong as those in the US Constitution. Nevertheless, the onus is on government to prove that a given restriction on religion or conscience “can be demonstrably justified in a free and democratic society.”

What if, for example, the parliament decided to pass a law simply making Judaism or Catholicism illegal? By Xerxes’s standard, this would be fine. Where’s the freedom?

In the harem.

Of course, there are problems involved. As Xerxes points out:

“If religious convictions are granted precedence over civil and criminal law, anyone could invent their own religion. Which might authorize ignoring speed limits. Driving on the wrong side of the road. Committing ritual murder. Pouring fentanyl into water supplies to poison unbelieving communities.

At that point, courts would have to determine what constitutes a legitimate religion.”

Courts must indeed do that now, for the very reason he gives: so that people cannot invent their own religion to justify their actions. I do not think the courts have always chosen wisely. The current standard in Canada is that the tenet is “sincerely believed,” and held “in good faith.”

I think that is too loose and too subjective. I would want to see scriptural justification from a religion with some history (so it was not written by the present plaintiff or his friends for their benefit), and with some tests that it is a “religion” properly so-called: belief in a spiritual realm, in a supreme being, in a religious basis for morality. Shamanism or magical practices, for example, is not a religion; nor is “ethical humanism” or vegetarianism.

As to the current issue, of polygamy, it seems to me that the defense of freedom of religion does not apply. The religion may permit polygamy, but it does not require it. Even when Mormonism endorsed the practice, only 20 to 30 percent of Mormon marriages were polygamous. Islam still endorses the practice, but most Muslims are monogamous. Therefore, prohibiting it does not infringe on freedom of conscience.

It does, on the other hand, seem impossible to insist on a prohibition on polygamy when homosexual marriage has been declared a human right. It would seem to fall under the very same “right to privacy” that has been read into the US Constitution, and the very same Section 15 in the Canadian Constitution that prohibits discrimination on the basis of sexual orientation. That is the section that was invoked to make homosexual marriage a human right: the argument being that otherwise the law discriminated on the basis of sexual orientation.

The section does not, in fact, prohibit discrimination on the basis of sexual orientation: the courts “read that in.” It does, on the other hand, prohibit discrimination on the basis of religion:

“Everyone has the right to equality before the law and to equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion, age or sex.”

On that basis, I would expect the law against polygamy to be struck down as unconstitutional. The cases seem to be exactly parallel.

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